IN THE CASE OF: BOARD DATE: 7 January 2016 DOCKET NUMBER: AR20150005655 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests an upgrade of his under other than honorable conditions discharge to an honorable discharge. 2. The applicant states, in effect, his discharge is incorrect. 3. The applicant provides no additional evidence. CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant enlisted in the Regular Army on 6 June 1979. 3. A DA Form 2-1 (Personnel Qualification Record – Part II). Item 21 (Time Lost (Section 972, Title 10, U.S. Code)) shows he was in an absent without leave (AWOL) status during the period 25 to 27 July 1980 and imprisoned by civilian authorities beginning 28 July 1980. This document further shows in item 27 (Remarks), reference items 21 and 35 (Record of Assignments): 800725 – SM app civ auth for 5 cnts of Bogus Checks and 1 count of Sodomy. 801216 – SM was sentenced to 6 terms of 3 years confinement. 810331 – SM restored to the rolls of the US Army Personnel Control Facility, USAFACFS, Fort Sill, OK pend possible elimination action UP Section III, Chapter 14, AR 635-200, effective 25 Jul 80. 4. On 2 April 1981, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him in accordance with section III, chapter 14 of Army Regulation 635-200 (Personnel Separations-Enlisted Personnel), for conviction by civil court. 5. His complete discharge packet is not available for review; however, a separate endorsement, dated 6 May 1981, shows the separation authority approved the discharge of the applicant under the provisions of chapter 14, section III, Army Regulation 635-200 and directed the applicant be issued an under other than honorable conditions discharge certificate. 6. His record contains a DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he was discharged on 20 May 1981. This form shows he was separated on temporary records and the applicant's affidavit. He was issued a separation code of "JKB," which denotes he was discharged under the provisions of chapter 14, Army Regulation 635-200, for misconduct-conviction by civil court. This form further shows his service was characterized as under other than honorable conditions and that he had time lost for the period 25 July 1980 through 20 May 1981. 7. There is no indication the applicant petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 8. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. b. Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. 9. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION AND CONCLUSIONS: 1. The applicant's records contains information that shows he was convicted by a civil court for 5 counts of bogus checks and 1 count of sodomy. His DD Form 214 shows he was discharged on 20 May 1981, under the provisions of chapter 14, Army Regulation 635-200, for misconduct – conviction by civil court. 2. In the absence of evidence to the contrary, it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. He provided no information that would indicate the contrary. His discharge was appropriate because the quality of his service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x___ ___x____ ____x___ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. _______ _ _x______ ___ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ABCMR Record of Proceedings (cont) AR20150005655 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150005655 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1